Opinion
03-CV-0145E(F)
October 27, 2003
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff Bailey-Lynch filed, pro se, a Complaint herein on February 21, 2003 asserting claims for alleged discrimination on the basis of race, color, sex, age and disability. Defendant Potter filed a motion to dismiss on July 7. Bailey-Lynch filed no responsive papers. This matter was argued and submitted on September 12. For the reasons set forth below, Potter's motion will be granted in part and denied in part.
In the alternative, Potter requests summary judgment in his favor. Inasmuch as this case involves a pro se party — and in light of the fact that no formal discovery has yet been conducted —, this Court declines the invitation to treat his motion as one for summary judgment.
When ruling on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP"), this Court "must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor" — Phelps v. Kapnolas, 308 E3d 180, 184 (2d Cir. 2002) (citation omitted) — and cannot dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, this Court must not consider whether the claims will ultimately be successful, but merely "assess the legal feasibility of the complaint." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998). Moreover, when reviewing a motion to dismiss, this Court must of course limit its review to the face of the Complaint and documents incorporated therein that are properly subject to judicial notice. See Newman Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996). Furthermore, a simplified "notice pleading standard" applies in employment discrimination cases, under which "it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell-Douglas framework does not apply in every employment discrimination case." Swierkiewicz v. Sorema N.A., 534U.S. 506, 510-512 (2002) ("Given that the prima facie case operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading standard for discrimination cases.").
Potter filed his motion to dismiss pursuant to FRCvP 12(b)(1) and FRCvP 12(b)(6). Inasmuch as FRCvP 12(b)(1) is plainly inapplicable, Potter's motion will be treated under FRCvP 12(b)(6) only. See Spurlock v. Nynex, 949 F. Supp. 1022, 1026 (W.D.N.Y. 1996) ("Although defendant has characterized this part of its motion as a motion to dismiss for lack of subject matter jurisdiction under [FRCvP 12(b)(1)], it is well established *** that filing a timely charge with the EEOC is not a jurisdictional prerequisite to a suit in federal court — rather it is a condition precedent and like a statute of limitations, is subject to waiver, estoppel and equitable tolling.") (citations and internal quotations omitted); see also Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000) (holding that exhaustion of administrative remedies is a precondition to filing a Title VII suit rather than a jurisdictional requirement).
Bailey-Lynch was a casual employee at the Postal Service during part of 2000. She was not re-hired in 2001. Although Potter claims that Bailey-Lynch was not re-hired because she had received poor evaluations from her supervisors, Bailey-Lynch alleges that the decision was based on unlawful discrimination. Other facts as are pertinent will be discussed below.
Runkle v. Potter, 271 F. Supp.2d 951, 953 n. 1 (E.D. Mich. 2003) (defining "casual" employee).
Potter seeks dismissal of Bailey-Lynch's disability discrimination claim on the ground that such was not raised in her administrative charge and that she thus failed to exhaust her administrative remedies. This Court agrees. Accordingly, Bailey-Lynch's claim for disability discrimination will be dismissed for failure to exhaust her administrative remedies. Potter also seeks dismissal of Bailey-Lynch's retaliation claim on the same ground — to wit, that Bailey-Lynch failed to exhaust her administrative remedies by including a retaliation claim in her EEOC charge. This Court finds that Bailey-Lynch's retaliation claim is "reasonably related" to the claims asserted in her EEOC charge. Indeed, she claimed retaliation in her Information for Precomplaint Counseling form filed with the EEOC on January 16, 2001. Consequently, Bailey-Lynch's retaliation claim was "reasonably related" to the conduct alleged in her EEOC charge and thus fell within the scope of the EEOC investigation that can reasonably be expected to grow out of her charge of discrimination.
Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 83 (2d Cir. 2001) ("[A] plaintiff typically may raise in a district court complaint only those claims that either were included in or are `reasonably related to' the allegations contained in her EEOC charge."); Barkley v. U.S. Postal Sen., 5 F. Supp.2d 150, 152 (W.D.N.Y. 1998) (dismissing plaintiff's sex-discrimination claim because she failed to raise it in her administrative charge and thus failed to exhaust her administrative remedies).
See e.g., Hansen v. Danish Tourist Bd., 147 F. Supp.2d 142, 153 (E.D.N.Y. 2001) (dismissing plaintiff's Title VII retaliation claim because it was not raised in her administrative complaint and it was not "reasonably related" to the allegations that were made to the EEOC).
See Angotti v. Kenyan Kenyon, 929 F. Supp. 651, 658-659 (S.D.N.Y. 1996) (holding that EEOC had notice of retaliation claim where plaintiff noted such in an intake questionnaire and that retaliation claim was "reasonably related" to plaintiff's claims and should have been part of the EEOC's investigation); see also Ausfeldt v. Runyon, 950 F. Supp. 478, 485-486 (N.D.N.Y. 1997) (finding plaintiff's retaliation claim "reasonably related" to allegations in EEOC charge because "the EEOC had enough notice of alleged retaliation that its investigation should have included these assertions" — despite the fact that a retaliation claim was not included in plaintiff's charge). Likewise here because the EEOC had express notice of Bailey-Lynch's retaliation claim. Indeed, Bailey-Lynch's retaliation claim appears to fall within the first two (out of three) exceptions to the administrative exhaustion requirement that are set forth in Butts v. New York City Dep't of Housing, 990 F.2d 1397, 1402-1403 (2d Cir. 1993).
Potter also claims that "[i]ncidents allegedly occurring prior to contact with an EEO counselor cannot be included in a judicial complaint and are unripe for adjudication where they were never made a part of the formal administrative Complaint and proceedings." Such, however, is inapplicable at this stage inasmuch as Bailey-Lynch alleges that she contacted an EEO counselor in June and December of 2000. Accordingly, Bailey-Lynch's retaliation claim will not be dismissed.
Def.'s Mem. Of Law, at 11 (citing Roman-Martinez v. Runyon, 100 F.3d 213, 220 (1st Cir. 1996)).
Although defendant contends that there is no evidence supporting Bailey-Lynch's allegations, such argument will be deferred until any summary judgment by defendant motion after discovery.
Potter contends that Bailey-Lynch's discrimination claims arising between July of 2000 and the first week of November of 2000 must be dismissed because Bailey-Lynch failed to exhaust her administrative remedies by contacting an EEO counselor within 45 days of the alleged discrimination. Such argument fails, however, because such requirement was either waived or is the subject of estoppel. Indeed, the EEOC's Acceptance of Complaint dated April 27, 2001 states:
Briones v. Runyon, 101 F.3d 287, 290 (2d Cir. 1996).
"The 45-day EEO counselor contact limitation requirement as set by the Equal Employment Opportunity Commission *** is waived or tolled regarding your complaint."
Consequently, these claims will not be dismissed for failure to exhaust administrative remedies.
Potter argues that Bailey-Lynch's retaliation claim should be dismissed for failure to state a claim. Bailey-Lynch, however, has sufficiently stated a retaliation claim sufficient to overcome Potter's motion to dismiss. A prima facie case for retaliation requires plaintiff to show that (1) she participated in protected activity, (2) the defendant was aware of such activity, (3) she suffered an adverse employment action and (4) a causal connection existed between the protected activity and the adverse employment action. Bailey-Lynch alleges that she engaged in protected activity in June and December of 2000, that the Postal Service was aware of such, that she was given a negative evaluation that resulted in a decision to not offer her renewed employment as a casual worker and that the negative evaluation was based upon her complaints. Such must be construed liberally and in Bailey-Lynch's favor and, accordingly, her retaliation claim will not be dismissed.
Gordon v. New York City Bd. of Ed., 232 F.3d 111, 116 (2d Cir. 2000).
Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000) ("A claim of refusal to rehire an individual following the filing of an employment discrimination charge may be a basis for a claim of retaliation."); cf. Fairley v. Potter, 2003 WL 403361, at *11 (N.D. Cal. 2003) (assuming arguendo that failure to re-appoint casual employee of the Postal Service constituted an adverse employment action).
Potter seeks dismissal of Bailey-Lynch's claims for sex, race and age discrimination on the ground that she fails to allege any facts that establish an inference of such discrimination. This Court will not dismiss Bailey-Lynch's Complaint because it sets forth a short plain statement of her claim and because discovery may yield direct evidence of discrimination. Swierkiewicz, at 511-512. Accordingly, Bailey-Lynch's claims for discrimination based on race, sex and age discrimination will not be dismissed.
See also Twombly v. Bell Atlantic Corp., 2003 WL 22304824, at *5 (S.D.N.Y. 2003) ("At the pleading stage, however, it is impossible to predict whether plaintiffs might discover direct evidence, and will therefore never need to avail themselves of McDonnell Douglas burden shifting."); Leuesanos v. White, 2002 WL 1202472, at *2 (S.D.N.Y. 2002) ("A complaint that complies with the federal rules of civil procedure cannot be dismissed on the ground that it is conclusory or fails to allege facts.") (quoting Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002)); Benjamin v. N.Y.C. Dep't of Health, 2002 WL 485731, at *7 (S.D.N.Y. 2002) ("[Swierkiewicz] overturned Second Circuit authority requiring Title VII plaintiffs to plead facts constituting a prima facie case of discrimination under the framework established by the Supreme Court in [McDonnell Douglas].").
"This is not to say that no 12(b)(6) motion can be granted in a Title VII case after Swierkiewicz." O'Neal v. State Univ. of N.Y. Health Sci. Ctr. Brooklyn, 1524664, at *6 (E.D.N.Y. 2003). Nonetheless, inasmuch as plaintiff is appearing pro se and inasmuch as defendant did not address Swierkiewicz in his brief, this Court will not dismiss plaintiff's claims at this stage. See e.g., Johnson v. New York Univ. Sch. Of Ed., 2002 WL 1144634, at *3 (S.D.N.Y. 2002) ("Furthermore, where a plaintiff is pro se and is alleging civil rights violations, as in the instant case, the court should proceed with caution and review claims liberally.").
Potter argues that Bailey-Lynch fails to make allegations sufficient to sustain a claim of a hosfile work environment. This Court agrees. First, Bailey-Lynch does not specifically assert such a claim. Second, assuming that she does so implicitly, Bailey-Lynch nonetheless fails to allege a hosfile work environment. Indeed, the Complaint only alleges that a co-worker pulled a rug on which Bailey-Lynch was standing (but that she did not fall). Such, however, fails to state a viable claim for hosfile work environment. Accordingly, Bailey-Lynch's hosfile work environment claim will be dismissed.
Bailey-Lynch's EEO questionnaire also alleged that (1) she was denied time-off around the Fourth of July — in contrast to another casual employee who was given time off during the summer, (2) she was not paid for time worked, (3) she was shoved by a co-worker, (4) her supervisors spoke to her in a demeaning manner and (5) she was given less advantageous work schedules than other employees.
See e.g., Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) (holding that plaintiff failed to state a claim for hosfile work environment where she alleged that she was voted "sleekest ass" in the office and that one of her male supervisors touched plaintiff's breasts with a stack of papers). Indeed, for plaintiff to establish a Title VII violation based on a hosfile work environment claim, she must show "(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hosfile environment to the employer." Richardson v. N.Y. Dep't of Corr. Servs., 180 F.3d 426, 436 (2d Cir. 1999) (quotations and citations omitted). The discriminatory intimidation alleged by plaintiff must be "offensive or pervasive enough that a reasonable person would find it hosfile or abusive and must have been actually perceived by plaintiff as abusive." Horsford v. Salvation Army, 2001 WL 1335005, at *9 (S.D.N.Y. 2001) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). In determining whether an environment is hosfile, this Court must look at the totality of the circumstances of the alleged conduct including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, at 23. To survive summary judgment, a "plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were [sic] sufficiently continuous or concerted to have altered the conditions of her working environment." Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000). Isolated incidents of discriminatory comments or conduct — unless extremely serious — are insufficient to establish a hosfile working environment. Quinn, at 768.
Accordingly, it is hereby ORDERED that defendant's motion to dismiss is granted in part and denied in part, that plaintiff's disability and hosfile work environment claims are dismissed and that defendant's motion is otherwise denied.